Ho Yuk-ho v. Kim Ming Industrial Co

DCCJ000009/1973

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

LABOUR TRIBUNAL APPEAL NO. 9 OF 1973

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Coram: J.J. Rhind. D.J.

Date of Judgment: 7 September, 1973

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JUDGMENT

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1. This is an appeal by an employee against the decision of the Labour Tribunal dismissing her claim for damages for wrongful dismissal by her former employer, the Respondent.

2. It is not in dispute that from 14th May 1973 till 19th June 1973 the Appellant, who was an "employee" within the meaning of S.3 of the Employment Ordinance, was employed by the Respondent under a contract which was "continuous" within the meaning of S.2A of the Ordinance, and because there was no express agreement to the contrary, S.4(1) resulted in her contract of employment being deemed renewable from month to month. As there was no special agreement between the Parties about length of notice, she would normally have been entitled under S.5(2) to one month's notice on the termination of her employment.

3. However, the Respondent claimed that her working performance was so poor that it was entitled to dismiss her summarily without any notice, and as the learned President of the Labour Tribunal found in the Respondent's favour on this, he entered judgment for the Respondent.

4. The Appellant's job was to assemble plastic toys in the Respondents factory, and for this she was paid a daily wage of $17.

5. Clearly the onus was on the Respondent to prove conduct on the part of the Appellant justifying instant dismissal, and the record of the court below shows that the particular acts of this nature relied on by the Respondent were firstly, that on 2nd June the Appellant wrongly assembled forty-eight dozen toy cars in that she put the wind-screen frame in the wrong way up, and secondly, that on 16th June her productivity on an assembly job known in the Respondents factory under the reference "721-B4" was a mere thirty-eight dozen whereas the average productivity for that particular job was allegedly much higher. Although this point is not completely clear from the record of the court below, it might also be that the Respondent was claiming that generally the Appellant's productivity was below average in the period prior to 16th June.

6. It might well be that the Respondent would have been justified in dismissing the Appellant summarily on 2nd June for failing to perform what was obviously a very simple task correctly. Obviously inefficiency or incompetence can reach a level where instant dismissal is justified. However, the Respondent chose to continue to employ her as before.

7. Whether her level of productivity on 16th June would have justified instant dismissal then is questionable. On the one hand, the court below relied on an entry in the Respondents production record (Exhibit D2) to show that one of the other workers, a Madam LAU Yuk-wah, was able to produce as many as eighty-four dozen of item "721-B4" on 6th November 1972, but on the other hand if one cares to peruse other entries in those records there are many instances of workers doing little better than the Appellant on "721-B4" without attracting the consequence of dismissal (see for example LAU Wong-chun on 17.8.72, LEE Kin-ling on 23.8.73 and CHEUNG Oi-kwan on 17.1.73 and 1.4.73.).

8. In any event, the significance which should be attached to the output of particular workers on particular days as described in the Respondent's productivity records is open to considerable question. Unless one knows how the work flow was arranged each day, it could be dangerous to draw inferences adverse to a particular worker, based on productivity alone. A perusal of the productivity records shows wild fluctuations in output even for the same worker from day to day.

9. Although I doubt whether the Appellant's performance on 16th June was so bad as to justify instant dismissal then, I find it unnecessary to make a firm finding on that because of another aspect of the case.

10. Again despite incurring the displeasure of the Respondent on 16th June, the Appellant was allowed to continue her employment as before.

11. The Respondent had no complaint to make about her performance on the next two days she worked, namely the 18th and 19th June. In fact, the Respondent would have been hard put to complain about her output then, for it was not so different from that of the worker, Madam LAU Yuk-wah, who, it will be recalled, was used as the standard of comparison for the Appellant's output on 16th June. On the 18th and 19th June, the Appellant worked on a task referenced "710-9", a type of work done by Madam LAU Yuk-wah on the 2nd and 3rd October 1972.

12. It appears that the court below has not considered there was any significance in the Appellant being allowed to continue working for the Respondent after 16th June. There is nothing on the record to show why the Respondent allowed that, after being so disgusted with her performance on 16th June. Moreover, there is nothing to show whether the Respondent had any new cause of complaint after 16th June, thus perhaps explaining the final decision to dismiss her on 19th June.

13. I asked the Respondents' representative about these matters and he informed me that the Respondent decided to give her a further chance, despite her performance on 16th June, because of the Respondents' difficulties in getting new employees, but on 19th June the Respondent decided to dismiss because of her generally unsatisfactory performance over the previous month. In other words, on 19th June the Respondent decided to change its mind about continuing to employ her.

14. Even if the individual happenings on 2nd June and 16th June, plus any other causes of complaint between those dates, might have justified the Respondent in dismissing her on 16th June, the Respondent waived or condoned any such past breaches by agreeing to continue to employ her after 16th June. By 19th June, it was too late for the Respondent unilaterally to withdraw such waiver, with the result that, in dismissing the Appellant without one month's notice or payment of one month's wages in lieu, the Respondent was in breach of contract. That the principle of waiver applies to contracts of employment in the same way that it applies to contracts generally can be gathered from Federal Supply & Cold Storage Company of South Africa v. Angehrn (1910) 103 L.T.150.

15. I accordingly allow the appeal, and the Appellant's damages are to be assessed.

16. Turning now to that assessment, I accept what the Appellant has told me about not being able to find any suitable work yet. As I am satisfied that she has made reasonable but unsuccessful attempts to mitigate her damages, her quantum of damages will be one month's salary. In the month prior to her dismissal she worked twenty-three and a half days and was entitled to one paid public holiday so at $17 per day earned $416.50, and that is the amount of damages I now award her.

Representation: